47. Rigos. Rigos is a course operated in, and for, Washington State. Like Supreme in Ohio, it is one of the few surviving competitors of BAR/BRI. Rigos has been the victim of substantial anticompetitive activity by BAR/BRI in Washington State, including defamation about its principal and its course, misstatements about its (BAR/BRI's) passing percentages versus Rigos', contamination of Rigos' customer relations and more. Most notable about Rigos here, however, is the declaration its principal has filed in connection with the repeated breaking and entering into his offices just after he was listed as a witness in the case Rodriquez v. West Publishing Corporation CV 05-3222R. (True copy is Ex. 1 hereto).
48. The Rigos declaration contains a lengthy list of predatory acts inflicted by BAR/BRI and calculated to eliminate the Rigos threat to its monopoly. They include employing faculty of Washington law schools to promote BAR/BRI while teaching, repeatedly chilling free speech by baselessly threatening Rigos' student reps personally with lawsuits claiming false advertising and defamation, threatening Rigos with litigation repeatedly for passing percentage representations (which were accurate), refusing to submit such records, from both companies, to an audit, and starting rumors that Rigos is about to go out of business.
49. As in Ohio, BAR/BRI also attracts those leaning to Rigos by offering them "scholarships" to take the BAR/BRI course! BAR/BRI also "blood-dopes" its own performance, should passing percentage ever be required or otherwise discernible, by providing scholarships to law review and similar high achieving students at various law schools in Washington. These are students who are almost certain to pass the bar exam, whatever course they take.
50. Regarding the burglaries, Rigos' office was recently broken into or otherwise electronically invaded four times (the only such act in 26 years of Rigos' occupying said office). During those burglaries, all that was taken were competitive marketing materials for his course and information about BAR/BRI. BAR/BRI employs on its staff a reputed former FBI agent in San Francisco (one Dennis Clisham, by name) who on information and belief would think little before causing such activities to occur, having, in fact, engineered a similar break-in at the Santa Monica offices of then competitor BarPassers some years earlier.
51. The first burglary occurred just four days after Rigos was first listed by Plaintiffs as a possible witness in the Rodriquez case The electronic hacking of its replaced hard drive occurred just days later. The final burglary occurred just a few days after Rigos' owner was contacted by BAR/BRI counsel for the first time and Rigos' principal hung up on said counsel, as they endeavored to interrogate him. This Court will be requested to assist in efforts to get to the bottom of the unusual events that so coincidentally surrounded Rigos just after he was listed as a witness in that case, so that such witness tampering does not impact this case too.
52. Saccuzzo. The Saccuzzos (husband and wife) essentially built a "better mousetrap,” i.e., a course which served to be a far more successful vehicle for improving the passage rates of its attendees, particularly for lesser performing law school graduates. The Saccuzzos, psychologists and lawyers, apparently concluded that there was a substantial psychological component in many of those who failed the bar exam. By blending their knowledge of psychology with the law, they were able to achieve substantially improved passing results in two second-tier law schools in the San Diego area. For example, it was recently announced that at the Thomas Jefferson School of Law in San Diego, its students who took Saccuzzo's course, Bar Secrets, passed the bar 16% more than those who took the "other" course.
53. When BAR/BRI learned of this superior course, one that could presumably threaten its entire existence, if rolled out by a new competitor across the country with a joint venture or license, it took steps to immediately destroy it. It did so by interfering substantially with Saccuzzos' relationship with at least one of the two San Diego area law schools in question. It contributed substantial resources to that school to divert business from Saccuzzo to BAR/BRI. Then, various student reps and faculty members at that school were co-opted to badmouth Saccuzzo's course, notwithstanding it was indisputably superior to BAR/BRI's in terms of passing percentages, ultimately the only relevant marketing criterion.
54. BAR/BRI employee Tara Shaw went so far as to write letters to potential Saccuzzo customers advising them of the purported superiority of its course, in part by making representations about Saccuzzo’s passing percentages that were misleading, if not outright false. After this onslaught of anticompetitive activity, BAR/BRI offered to the Saccuzzos the "comfort" of employment with BAR/BRI, much like it offered employment to Marino's principal years earlier.
55. LexisNexis. LexisNexis (“Lexis”) is West's principal competitor. In approximately 2001, Lexis purchased a variety of courses and related assets from Harcourt which included the BAR/BRI business. Shortly thereafter, it sold BAR/BRI and various other assets to West. On information and belief, the various agreements entered into at the time do not reflect any written non-compete agreements with Lexis, the type that might be incident to the sale of an asset and might even be legitimate if made at the time.
56. However, there is joint marketing activity between Lexis and West outside the U.S., in Hong Kong in connection with the BAR/BRI bar review course. There, apparently, for ex patriates or others who wish to take an American bar exam, BAR/BRI offers a course that purports to be a “Lexis/Nexis… course.” In addition, prior to the purchase of BAR/BRI by Lexis, the two companies had a marketing agreement. On information and belief West and Lexis have entered into an agreement wherein among other things Lexis will not compete against BAR/BRI in the United States. Upon the taking of discovery, Plaintiffs expect to learn West's quid pro quo for this understanding. Such a market division agreement violates section 1 of the Sherman Act (15 U.S.C. § 1).
57. Other Acts. BAR/BRI unreasonably insists on, and has routinely obtained, numerous agreements from faculty and staff prohibiting their working for or otherwise assisting any other bar review course provider should they depart BAR/BRI;
58. BAR/BRI has engaged in the continuing practice of tearing down, otherwise removing, or preventing the posting of, the signs, placards and related promotional materials of local bar review course competitors at various law schools in the U.S., including by the means set forth in paragraph 45 above.
59. BAR/BRI has paid so-called “consulting” fees to various law school administrators at least, in part, to assure that BAR/BRI maintains preferential, if not unique, access to the use of such law schools’ assembly and common areas for marketing and related purposes and to further assure that any potential competitors will be unable to obtain such access.
INJURY TO PLAINTIFFS
60. During the period covered by this Complaint, Plaintiffs intend to purchase at least one bar review preparation course by 2010. As a direct result of Defendants’ monopolization, Plaintiffs have little choice but to pay far more for the course(s) they purchase than they would in the absence of such wrongful acts.
61. In the recent past, BAR/BRI’s course has cost each consumer about the following amounts: $3,100 in California, $2750 in Florida, $2600 in Illinois, $2700 in Maryland, $2800 in New York, $2500 in Pennsylvania, $2600 in Texas, $2750 in Virginia, and comparably supra-competitive price levels elsewhere in the United States, except in those few states where state bar or similar rules put a cap on BAR/BRI’s pricing (e.g., Iowa) or isolated local competition remains (such as in Indiana). In addition, BAR/BRI imposes an effectively non-refundable book charge, repeat fees, add-on (second state preparation) fees, plus other penalties and charges that have increased substantially over the last several years and now average hundreds of additional dollars of cost per student per year.
62. Alternative and superior competitive and copyrighted course materials and instructional approaches have been acquired by BAR/BRI, which have then been suppressed by it, then unavailable to, and unused by, others. The effect of this factor is that Plaintiffs will be deprived of the right to choose among such alternative materials and approaches when they graduate. Plus, a potential competitor faces a possible copyright infringement claim if it prepares such materials for its own use, as it must. This has further suppressed competitive choices.